Shearer, J.:— This second appeal, which is by the defendant, arises out of a suit in ejectment which has been decreed by both the courts below. The defendant in the suit took a lease of a house situated in Exhibition Road, Patna, for a period of one year, commencing on the 1st of February, 1943, and terminating on the 31st of January, 1944. The Bihar House Rent Control Order, 1942, was extended to the area in which this house is situated by a notification issued on the 24th of April, 1942. The plaintiff subsequently made an application to the Controller, and the Controller fixed the fair rent of the house at Rs. 90 a month. When, however, the house was let out to the defendant, the plaintiff agreed to accept a rent of Rs. 80 a month. The defendant did not, as she could have done, apply under section 12 of the House Rent Control Order to have the period of her tenancy extended, the reason, I have no doubt myself, being that, rightly or wrongly, she was under the impression that the plaintiff had agreed, or would be prepared to agree, to her continuing in occupation as a tenant front month to month. The suit, it is not without significance, was not instituted until near the end of 1944. The defendant in her written statement pleaded that by reason of the provisions contained in section 13 of the Order she was entitled to continue in possession and was not liable to be ejected. It is conceded that the defendant was ready and willing to pay the fair rent fixed by the Controller. She has, it appears, deposited, as it fell due, the rent which she contracted to pay under her lease and would have deposited also the difference between that rent and the fair rent if she had been permitted to do so. Mr. Sarjoo Prasad, for the respondent, suggested that the defendant had not performed the conditions of the tenancy as one of the conditions of her lease was that she should yield up possession of the premises on the 31st of January, 1944. The expression “conditions of the tenancy”, as it occurs in section 13 of the Order, must, however, be construed as not including a condition to yield up the premises demised on the expiration of the term or on the service of a Valid notice to quit. Unless the words are to be construed in this way, it is obvious that the provision would be rendered nugatory. The same words occur in similar enactments in England have been so construed there; see, for instance, the observations of Astbury, J. in Artizans, Labourers and General Dwellings Company, Limited v. Whitaher. The main contention put forward by Mr. Sarjoo Prasad, for the respondent, was, however, that section 13 did not apply to decrees passed or orders made by civil courts but to orders made by the Controller under the House Rent Control Order itself. On principle, however, there is no reason to read into section 13 such words as “by the Controller” which do not occur there. Moreover, it cannot, I think, be properly said that there is any provision in the House Rent Control Order which enables the Controller to make an order for recovery of possession. Under the proviso to section 4(3) the Controller may, no doubt, “direct the tenant to vacate the house” and under section 12(2) he may “pass an order disallowing the extension demanded by the tenant”. Again, under section 4(2) and also under section 12(3) the Controller is authorised, in certain circumstances, to direct a landlord, who has succeeded in obtaining possession, to vacate the premises and restore the tenant to possession, Possibly, orders and directions of this kind were, in practice, ordinarily obeyed, under the impression that disobedience to them amounted to an offence under the Defence of India Rules. Clearly, however, if they were not obeyed, the Controller could not enforce obedience to them by legal process. In the last resort, the person in whose favour the order was made had no alternative but to go to the civil court and assert a statutory right to possession and obtain a decree, in execution of which he could ask for a writ for delivery of possession. This patent defect or lacuna in the House Rent Control Order was, apparently, recognized when that Order was replaced by the Bihar Buildings (Lease, Rent and Eviction) Control Ordinance, 1946, as section 16 of the Ordinance provided that orders made by the Controller should have the effect of a decree and should be executed as such by the civil courts. The object of the legislature in enacting the House Rent Control Order was, as I understand it, the same as the object which the legislature in England had in enacting the various Rent Restrictions Acts which were passed in the second and third decades of this century, namely, to prevent tenants from being compelled to pay an excessive rent by threats of being evicted. In order to achieve this object, the legislature, in effect restricted by statute the rights which landlords had to eject their tenants and obtain possession of their premises in order to let them out to persons who were prepared to pay a rent which the existing tenants would not agree to pay and which was an excessive rent. It is obvious that the only way in which the tenant could, in the last resort, the protected against ejectment was by refusing the landlord the legal process to which he would, in the ordinary course of law, have been entitled. That this was intended to be done and was, in fact, done, is, I think, clear when the House Bent Control Order, as originally enacted, is examined. Section 4 of the Order did not then contain either sub-section (2) or sub-section (3) or the proviso; to sub-section (3). The functions of the Controller were thus confined to determining a fair rent and to deciding whether an application by a tenant whose term was about to expire for an extension of the term should be allowed or disallowed. The jurisdiction of the civil courts to entertain suits in ejectment was in no way restricted. It was open to a landlord to institute a suit in ejectment on the ground that the term of the lease had expired or the tenancy had been determined by notice. In certain suits in ejectment the tenant was, however, enabled to set up a defence which, under the law as it stood prior to the enactment of the House Rent Control Order, was not open to him, namely, that by reason of the provisions contained in either section 4(1) or section 13 he was a statutory tenant or had a statutory right to continue in possession. Whether that defence was or was not a valid one was, of course, for the civil court to determine. The position was not, I think, radically altered by reason of the successive amendments made in section by the notifications issued on the 11th of June, 1942, and the 23rd of June, 1943. The result of these merely was that, if the Controller, on an application made to him by the landlord, decided that the landlord required the premises for his own use, the civil court was debarred from entertaining a plea that the defendant was a, statutory tenant, and, if the landlord, under the terms of the lease, was entitled to a decree, the civil court was bound to decree the suit. When the House Rent Control Order came into operation, there must have been many landlords who had already obtained decrees in ejectment but had not yet succeeded in ejecting their tenants. I think myself that section 13 was advisedly drawn in such a way as to enable a tenant to resist an application by the landlord for a writ for delivery of possession. Manohar Lall, J. in Surajnarain v. Jamil has expressed a contrary opinion on the ground that a court executing a decree cannot go behind the decree. But, in such a case the court was not asked to set the decree aside or modify it was asked to say that, in spite of their being in existence a valid decree, the tenant had, nevertheless, a statutory right to continue in possession, and, therefore, to resist an application by the landlord for the issue of a writ for delivery of possession. The decision in Surajnarain v. Jamil was strongly relied on by the learner advocate for the respondent and also by the trial court, but it is not, in my opinion, directly in point. At the most it is an authority for the proposition that, when a decree in ejectment has been passed, the judgment-debtor cannot set up a statutory right to continue in possession. It is no authority for the proposition that a defendant cannot successfully set up that plea in an ejectment suit. In fact, Das, J., in his concurring judgment expressed the opinion that he could.

Finally, it was contended by Mr. Sarjoo Prasad, for the respondent, that, as the House Rent Control Order had expired and as there was no provision corresponding to section 13 in the Bihar Buildings (Lease, Rent and Eviction) Control Ordinance, 1946, which replaced it, the suit should be decreed now, even if it should not have been decreed by the trial court. This argument assumes that the defendant is still a tenant for a period of one year, which period has expired. This, however, is not so. When the term of her lease expired, she became a, statutory tenant in the sense that she was entitled to retain possession by reason of the provisions contained in section 13 of the Order. Now, the word. “tenant” has been defined in clause (h) of section 2 of the Ordinance as meaning

“any person by whom, or on whose account, rent is payable for a building and includes a person continuing in possession after the termination of the tenancy in his favour”.

The Ordinance in its turn has expired, but Bihar Act III of 1947, which has replaced it contains the same definition of the word “tenant”. The defendant thus still has a statutory right to continue in possession. The ground on which the plaintiff seeks to recover possession is apparently that she requires the premises in good faith for her own use or for the use of her dependents. Whether her claim is or is not a bona fide one is a matter which, under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, it is still for the Controller and not for the civil court to determine. The plaintiff was, I think, ill-advised to institute this suit. In my opinion, the appeal must be allowed and the suit must be dismissed with costs throughout.

Bennett, J.:— The facts upon which this Second Appeal arises have been stated by my learned brother and I need not repeat them. The learned Munsif, who delivered his judgment whilst the House Rent Control Order, 1942, was still in force, having rightly decided on the authority of the decision in Surajnarain v. Jamil that Order did not oust the jurisdiction of the civil courts to entertain a suit in ejectment decided that section 13 of the Order could not be relied upon on the appellant because she was in breach of a fundamental condition of the tenancy, namely, that she should vacate the premises at the expiration of the lease. The learned Subordinate Judge stated his opinion, firstly, that section 13 of the 1942 Order could not avail the appellant, though he gave no reasons, and secondly, that as the 1942 Order had expired at the date of the appeal, it was the Bihar Buildings (Lease, Rent and Eviction) Control Ordinance, 1946, which applied and that nothing in that Ordinance operated to prevent the eviction of the appellant. The Bihar Buildings (Lease, Rent and Eviction) Control Ordinance, 1946, has now lapsed and been replaced by the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, but there is no substantial difference between the relevant provisions of the 1946 Ordinance and the 1947 Act.

For the reasons hereinafter appearing, I am of opinion that the appeal must succeed whether the 1942 Order, the, 1946 Ordinance or the 1947 Act is the relevant statutory provision governing the decision in appeal. It is not necessary therefore to consider which of these statutory provisions is the relevant provision. One of them must be relevant.

The provisions of section 13 of the 1942 Order are as follows:—

“13. Bar against orders for recovery of possession of House in possession of a tenant.—No order for the recovery of possession of any house shall be made so long as the tenant pays or is ready and willing to pay rent to the full extent allowable by this Order and performs the conditions of the tenancy.”

There is no provision in the Order for any order for the recovery of possession of any house to be made by the Controller. It is therefore clear that the orders contemplated in the section are orders of the Civil Courts and that under the section every tenant of a house to which the order applies is given a statutory defence to a suit for ejectment upon the ground that he pays or is ready and willing to pay rent to the full extent allowable by this Order and performs the conditions of the tenancy. The effect of the words rent to the full extent allowable by this Order is, in my opinion, to limit the statutory defence under the section to cases where a fair rent has in fact been fixed by the Controller. The fair rent of the house here in question has in fact been so fixed and it is not disputed that the appellant is ready and willing to pay the same as and from the date of expiration of her fixed tenancy. It is urged, however, that she cannot be said to be performing the conditions of her tenancy because she has not vacated the building at the expiration of the fixed period. If this were a valid argument, it would apply equally to a tenant for month to month to whom the landlord had given a valid notice to quit and indeed in one way or another to every class of tenant whose possession the 1942 Order was clearly designed to protect and the whole Order would be rendered nugatory. The English case of Artizans, Labourers and General Dwellings Company, Limited v. Whitaker referred to by my teamed brother shows that no difficulty has been felt with reference to a similar provision in an English Statute in distinguishing between the condition to vacate at the end of the lease and what may perhaps be called the running conditions of the tenancy. It was strongly contended that if section 13 were so construed there was an absolute repugnancy between the provisions of sections 12 and 13 of the 1942 Order in that section 13 would compel a civil court to refuse an order for the ejectment of a tenant in a case where the Controller acting under section 12(2) had passed an order disallowing the application of the tenant made under section 12(1) for an extension of his tenancy, not being a tenancy from month to month, for a period of not less than six and not more than twelve months. But there is no such repugnancy, Section 12 enables a tenant at the end of the tenancy for a fixed period to get a limited extension of his tenancy upon the existing rent. Section 13 provides that where a fair rent has been fixed, the tenant shall not be ejected so long as he is ready and willing to pay the fair rent. The two sections are not in pari materia and there is no repugnancy. It follows, therefore, that in so far as the case falls to be decided by reference to the 1942 Order the lower Courts should, in my opinion, have given the appellant, the benefit of the statutory defence provided by section 13 thereof.

I turn, therefore, to the position under the 1946 Ordinance and the 1947 Act. Section 11 of the Ordinance and of the Act provides, inter alia, as follows:—

11.(1) Notwithstanding anything contained in any agreement or law to the contrary and subject to the provisions of section 12, where a tenant is in possession of any building, he shall not be liable to be evicted therefrom, whether in execution of a decree or otherwise, except—

(a) in the case of a month, to month tenant, for non-payment of rent or breach of the conditions of the tenancy, or for subletting the building or any portion thereof without the consent of the landlord, or……………………; and

(b) in the case of any other tenant, on the expiry of the period of the tenancy, or for non-payment of rent, or for breach of the conditions of the tenancy:

Provided…………………………….

(2) A landlord who seeks to evict his tenant under sub-section (1) shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that the tenant is liable to be evicted under the provisions of sub-section (1), he shall make an order directing the tenant to put the landlord in possession of the building and if the Controller is not so satisfied, he shall make an order rejecting the application.

(3)(a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession of a building if he requires it reasonably and in good faith for has own occupation or for the occupation of any person for whose benefit the building is held by him:……………………”

The term “month to month” tenant is defined in section 2 of the 1947 Act as follows:—

“‘mont’ to month tenant, means a tenant holding a lease of a building from month to month or for an unspecified period”

and the word “tenant” as—

“any person by whom, or on whose account, rent is payable for a building and includes a person continuing in possession after the termination of the tenancy in his favour”.

The 1946 Ordinance contained similar definitions.

Under section 13 of the 1942 Act, the appellant's possession so long as she continued ready and willing to pay the fair rent and perform the other conditions of the tenancy was protected and she was therefore a person “continuing in possession after the termination of the tenancy in her favour” and as such a “tenant” within the definition above set out. As such tenant she was clearly either holding a lease of a building for an unspecified period or since the fair refit was fixed and payable monthly was a tenant from month to month within the ordinary meaning of that phrase. The expression “holding a lease of a building for an unspecified period” is on its face a contradiction in terms because the first essentials of a valid lease are that it should be expressed to be for a period certain and that the dates of its commencement and expiration, should be known and fixed. In the context, therefore, the word lease in the definition of a “month to month tenant” must be taken to have been used loosely to mean a tenancy. A person in possession of a building under the protection afforded by section 13, of the 1942 Order is a ‘tenant’ by definition and is clearly a tenant so long as the Order remains in force, which was, at the expiration of the appellant's fixed period of tenancy, an unspecified period. At the date of the coming into force of the 1946 Ordinance and later of the 1947 Act, therefore, the appellant was a “month to month tenant” as defined in section 2(e) of the 1946 Ordinance and of the 1947 Act. As such, she would be entitled to the protection of section of both the Ordinance and the Act. Section 11(1)(a) read with section 14(2) of the 1947 Act does not operate to oust the jurisdiction of the civil courts to pass a decree in a suit for the ejection of a month to month tenant; what these sections do operate to do is, firstly, to provide a month to month tenant with, a statutory defence to a suit for ejectment unless the landlord can bring the case within one of the exceptions mentioned in section 11(1)(a), and secondly, in conjunction with section 17 of the 1947 Act, to deprive the executing Court of the power to execute a decree for the ejectment of a tenant, whether the decree was passed before or after the coming into force of the Act, unless an order to that effect, under section 11(2) thereof has first been passed by the Controller. That being so and it being clear that the respondent cannot bring the case within any of the exceptions contained in section 11(1)(a) of the 1946 Ordinance and of 1947 Act the lower appellate Court should, in so far as the case falls to be governed by the provisions of the 1946 Ordinance, have dismissed the respondent's suit and this appeal whether it falls to be determined according to the 1942 Order, the 1946 Ordinance or the 1947 Act, must succeed.

In so far, however, as the protection accorded to the appellant under the 1942 Order is dependent upon payment of the fair rent and since it is, therefore, that rent which is applicable to her month to month tenancy and which is therefore the rent of the building for the purposes of section 11(1)(a) of the 1946 Ordinance and of the 1947 Act, she will, of course, be liable to pay that fair rent to the landlord with effect from the date of expiration of her original lease, namely, 31st January, 1944. With this observation, therefore, I agree that this appeal should be allowed with costs throughout.

K.D

Appeal allowed.